The End of the Reasonable Observer

The 2013 term at the Supreme Court may prove the last gasp of Sandra Day O’Connor’s legacy.

The Roberts Court will likely continue to dismantle the pragmatic law-shaping of Sandra Day O'Connor.

Photo by Chip Somodevilla/Getty Image

Back in 2005 when Sandra Day O’Connor stepped down from her seat at the Supreme Court, Georgetown University professor Martin Lederman composed a now famous list of 31 cases that might have been decided differently had Samuel Alito been on the court rather than Sandra Day O’Connor; precedents that might be ripe for overruling or cutting back if and when the issue again came before the court after George W. Bush replaced her. In updating that list over the years, Lederman refined his argument and expanded it. In at least five critically important areas of constitutional law, in particular, O’Connor’s almost quarter-century legacy of middle-of-the-road pragmatism could be dismantled, Lederman predicted.

The five main constitutional areas Lederman identified were abortion, affirmative action, campaign finance reform, church/state entanglement, and congressional power to remedy discrimination. By June 2008, Lederman noticed that in three of the five—abortion, affirmative action and campaign finance reform—O’Connor’s legal architecture had already been largely eroded. In a piece published that same year in USA Today, Joan Biskupic made the same point, noting that in just three years the Roberts Court had already shifted course on abortion by upholding a ban on so-called partial birth abortion that sidestepped a 2000 O'Connor opinion requiring exceptions to protect the health of the mother. The court had retreated on integration by making it difficult for public school districts to reassign students to different schools to achieve racial diversity, chipping away at a 2003 affirmative action compromise reached by O’Connor. Finally, Biskupic noted that the Roberts Court had already fundamentally “altered its approach to campaign finance law,” and was now protecting election donations as a form of free speech.

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

As the October 2013 term opens at the court, all of these five areas of O’Connor‘s legal worldview are represented on the docket, which is still not yet complete. The justices will hear a crucial campaign finance case, a case involving state-sanctioned prayer, and an affirmative action case from Michigan. There will also be a Fair Housing Act case looking at disparate impact in housing, in which some justices might call into question the scope of Congress’ power to prohibit private discrimination. The court might also hear a case challenging an abortion restriction, depending on how the Supreme Court of Oklahoma construes the law. This term may not hold out the promise of blockbusters like last year’s same-sex marriage cases or the Voting Rights Act challenge (or the still-traumatizing Obamacare challenge from the year before). But it may nevertheless end up standing for the final demise of the O’Connor legacy.

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O’Connor was the court’s great compromiser, the justice who worried perhaps too obsessively about how, as professor RonNell Andersen Jones once put it, “a decision from the Court in one direction or the other would impact actual people, actual businesses, and actual governmental institutions in the country.” She needed government to work, and her constitutional world was often peopled by the ghosts of the sensible, reasonable outsiders and outliers; those she mysteriously channeled as she worked out practical solutions to theoretical problems on a case-by-case basis. That sort of reasonable ghost has all but disappeared this fall, at the court and in Congress as well. It’s probably an apt moment, then, to mourn the demise of O’Connor’s sometimes crazy-making pragmatic centrism, mirrored by the collapse—courtesy of the debt ceiling crisis and a government shutdown—of the very same quality in Congress and the rest of government.

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Here’s a rundown of these big cases, and the implications for the legal universe as O’Connor created it:

CAMPAIGN FINANCE REFORM:

It was a classic O’Connor compromise; an effort to avoid extreme positions that may collapse before her 25-year experiment in human progress is allowed to run.

McCutcheon v. Federal Election Commission is a potential follow-on to the infamous 2009Citizens United decision, which gutted certain provisions of the McCain–Feingold campaign finance reform law. The new iteration challenges the provision limiting the “aggregate” amount any person can directly contribute directly to candidates for federal office, political parties and political committees. The amount is capped at $123,000 in any two-year election cycle. As Richard Hasen explains here, McCutcheon could well be “the beginning of the end of any limits on campaign contributions given directly to candidates in federal, state, and local elections.” If the court’s five conservatives choose, the case may signal the end of the constitutional distinction between how the court views contribution limits (which are easier to uphold) and spending limits (they’ve been treated as a clearer First Amendment violation).

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In 2003, it was O’Connor who saved the constitutionality of the McCain–Feingold campaign finance law. And when O’Connor was replaced by Samuel Alito, the court began to chisel away at campaign finance reform, first in 2007, and then again in Citizens United in 2010. The replacement of O’Connor with Alito meant that the court has simply shifted to a 5–4 majority that is generally hostile to the notion of regulating money in politics.

ABORTION:

The court will hear one, and possibly two, abortion-related cases this term. The first, McCullen v. Coakley, is really a free speech case that implicates abortion. The second—which isn’t squarely on the docket yet—involves medical abortions, as opposed to surgical ones. In McCullen, abortion protesters challenged a Massachusetts law that makes it a crime to “enter or remain on a public way or sidewalk” within 35 feet of the entrance, exit, or driveway of a “reproductive health care facility.” Because the law does not apply to all health-care facilities, and because it exempts employees or agents of these clinics so long as they are acting within the “scope of their employment,” the protesters contend that it restricts only the free speech rights of abortion opponents, while privileging supporters (a classic viewpoint-based speech ban, if they’re right). An appeals court upheld the ban. This will be an opportunity for the court to revisit Hill v. Colorado, a 2000 case creating “bubbles” around abortion clinics. O’Connor voted with the majority to uphold such zones in that case.

The second case, Cline v. Oklahoma Coalition for Reproductive Justice,is a challenge to an Oklahoma law that prohibits the off-label use of abortion drugs, limiting abortion protocols to those the FDA approved for manufacturer promotion in 2000. As Emily Bazelon has explained here, by constraining physicians’ ability to prescribe anything that deviates from the old FDA protocol, it puts the state in the position of “ordering doctors to provide what they believe, based on the best medical evidence, is substandard care.” The Oklahoma Supreme Court opinion striking down the ban practically invited the U.S. Supreme Court to revisit Planned Parenthood v. Casey, the landmark (O’Connor-sanctioned) 1992 case reaffirming Roe v. Wade. O’Connor’s compromise test (crafted with Justices Anthony Kennedy and David Souter) bars states from imposing an “undue burden” on a woman seeking an abortion. It’s impossible to overstate the extent to which the erosion of the undue burden test would impact women seeking an abortion in this country. As Linda Greenhouse points out, we have already seen a remarkable decline in access to abortion, linked to Justice Kennedy’s decision for the court in Gonzales v. Carhart, the partial-birth abortion case. Whether there is anything meaningful remaining of that old O’Connor-endorsed test remains to be seen at the court. First, though, the Oklahoma Supreme Court has to weigh in again, to clarify what the state law actually prohibits.

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AFFIRMATIVE ACTION

Last term, the court made the decision to punt on what could have been a significant challenge to affirmative action in higher education. This term, the court gets another look at affirmative action, now looking at a Michigan ballot initiative that bars so-called racial “preferences” in public universities, government contracting, and public employment. The question inSchuette v. Coalition to Defend Affirmative Action is whether a state can forbid the boards of regents of state universities from using any race-based considerations in admissions. TheU.S. Court of Appeals for the 6th Circuit, based in Cincinnati, has ruled that Michigan’s law violated the Constitution’s guarantee of equal protection because it relegates questions of race to a different political hurdle than all other questions—so when someone who wants the university’s preference for legacies to be altered, for instance, she can petition the Board of Regents directly, whereas those who think the state should do more to remedy racial injustice, or increase racial diversity, have no choice but to try to repeal the constitutional provision. It was O’Connor, in a pair of cases out of the University of Michigan from 2003, who provided the fifth vote for upholding the law school’s race-based admissions policy because it fostered diversity in higher education. She wrote then that she hoped that “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” The Roberts Court didn’t wait 25 years. It started pulling up the stakes just four years later in a pair of cases about the need for race-based efforts to integrate public schools. Affirmative action was another one of those areas in which O’Connor’s general concern about race preferences was trumped by a real-world solicitude for the students, deans, educators, and national leaders who might benefit from it, at least for a time. It was a classic O’Connor compromise; an effort to avoid extreme positions that may collapse before her 25-year experiment in human progress is allowed to run.

CHURCH/STATE SEPARATION

Since 1999, the town of Greece, N.Y., has opened its town hall meetings with a prayer offered by a “Chaplain of the Month.” After two citizens of the town challenged the prayer sessions, the U.S. Court of Appeals for the 2nd Circuit found that because almost two-thirds of the prayers contained sectarian references to “Jesus Christ” and “Your Son” and the “Holy Spirit” the town had crossed the First Amendment line on government establishment of religion. Greece v. Galloway gives the court an important opportunity to revisit its 30-year-old decision, in Marsh v. Chambers, allowing for legislative prayers so long as they could not be “exploited to proselytize or advance any one, or to disparage any other, faith or belief.” As Christopher Lund has argued here, the court needs to clarify the boundaries of Marsh and this may be the case to do it. It’s not at all clear what the court will do about the prayers in the Town of Greece. What is clear is that O’Connor’s special solicitude for reasonable onlookers and outsiders, confronted with what they viewed as government “endorsement” of sectarian religious messages, may no longer have a vocal champion at the court. And if the court decides to take on a second religious liberty case—the question of whether, under the Affordable Care Act, for-profit employers can refuse to provide contraception to their workers on religious grounds—we may be in for a truly rollicking ride on the religious freedom front. Indeed, as a case that involves abortion, religious freedom, and corporate personhood, Hobby Lobby v. Sebelius could well have been the final exam question on a “Sandra Day O’Connor’s World” law exam.

There are a whole lot of other critically important cases on the docket this term, and more will be added as we bump along this autumn. The court will decide whether some of President’s Obama’s recess appointments exceeded his executive powers, an important question of whether unintended racial discrimination is illegal under the Fair Housing Act, several cases about the limits of police searches, and whether victims of child pornography must show a causal link between viewing child pornography and their injuries to be entitled to restitution. There is challenge to the EPA’s regulatory authority, another patent dispute, and a dispute over Congress’ authority—confirmed by the court in 1920—to implement U.S. treaty obligations (in this case, regarding a criminal law implementing the chemical weapons convention).

“What’s perhaps most remarkable about the next Term is the sheer number of cases in which advocates are making aggressive arguments that the Court should overturn or dramatically constrict one of its longstanding precedents,” Georgetown’s Lederman says. Although it’s unlikely the court will accept the invitation in every one of those cases—several of which reflect the dying embers of O’Connor’s once defining legacy—the prospect for very dramatic change is clear. And the absence of the court’s last true compromiser/dealmaker and horse trader may be only fully appreciated by the close of the 2013 term.